Cowan v. Cunningham, 146 N.C. 453 (1907)

Dec. 18, 1907 · Supreme Court of North Carolina

146 N.C. 453

COWAN, McCLUNG & CO. v. CUNNINGHAM & WARD.

(Filed 18 December, 1907).

1. Notes — Partnership—Signature—Seals—Surplusage.

Tbe seals after the signatures to a note, “C. & Co. (Seal), per J. T. C. (Seal),” are surplusage, and the obligation is the simple contract of the firm.

2. Judgment by Default Set Aside — Legal Discretion — Prejudice — Reasonable Time.

When a judgment by default final is allowed for a defect amounting only to an irregularity, it is not set aside as a matter of right in the party affected, but in the sound legal discretion of the court. The party injured should show that some substantial right has been prejudiced, and he must proceed with proper diligence and within a reasonable time. '

MotioN to set aside judgment, tried before Gooke, J., at August (Special) Term, 1907, of tbe Superior Court of Swain County.

Tbe motion was denied, and- defendants excepted and appealed.

E. R. Hampton and A. M. Fry for plaintiffs.

F. 0. Fisher for defendants. ”

Pee Cueiam:

Tbe judgment in tbis case was rendered against John T. Cunningham andD. A. C. Ward, as partners, at Spring Term, 1901, of tbe Superior Court of Swain County, on a note for $537.30, signed “J. T. Cunningham & Co. (Seal), per J. T. Cunningham (Seal)/’ with an allegation that tbe company was composed of defendants J. T. Cunningham and D. A. C. Ward. Tbe complaint was filed in due course of tbe court, at Fall Term, 1900, and at Spring Term, 1901, defendants having filed no answer, judgment by default final was rendered against defendants for tbe amount of the note and interest. Some time after the judgment, one of tbe defendants (Ward) having died, bis representative and widow and heirs at law, at Spring Term, 1907, moved to set aside tbe judgment, on tbe ground that judgment by default final bad been taken on an unverified complaint. «

Under tbe authorities, and on tbe face of tbe papers, tbe obligation is tbe simple contract of tbe firm, regarding tbe seal as surplusage. Pipe Co. v. Woltman, 114 N. C., 178; Burwell v. Linthicum, 100 N. C., 145 ; Bates on Partnership, sec. 418. If it should be conceded in such case that a judgment by default final is not allowable on an unverified complaint, tbe defect only amounts to an irregularity, and such judgments are not set aside as a matter of right in tbe party affected, but in tbe sound legal discretion of tbe court. As said in Becton v. Dunn, 137 N. C., 562: “Such judgments are not set aside as a matter of right in tbe party litigant, but rest in tbe sound legal discretion of tbe court. It is always required that a party claiming to be injured should show that some substantial right has been prejudiced, and be must proceed with proper diligence and witbip a reasonable time.”

We are of opinion, in tbe present case, that tbe applicants have not brought their cause within either of these requirements. They did not move within a reasonable time, and there is no satisfactory evidence given that a good defense exists against tbe demand; and for these reasons their motion was properly refused.

Affirmed.